Page 1489 - Week 05 - Thursday, 12 May 1994
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I am prepared, as I have said, to give Mr De Domenico the industrial relations lesson again, so I will do that. I will begin by setting out the essential elements in the framework which, in effect, operate to prevent discrimination against any sector in the work force. The ACT Discrimination Act contains a provision that makes unlawful discrimination on the ground of membership or non-membership of an association of employees or employers. However, this provision does not operate in circumstances where it cannot operate concurrently with a preference arrangement included in a Federal law.
Under section 28 of the Australian Capital Territory (Self-Government) Act 1989, awards of the Australian Industrial Relations Commission are included in laws, and a provision of an enactment - that is, an ACT enactment - shall have no effect to the extent that it is inconsistent with a law. Have you got that? Under section 4 of the Commonwealth Industrial Relations Act 1988, awards are also defined to include certified agreements. Do you know the difference between an award and a certified agreement? Obviously not.
Mr Westende: I certainly do.
MR LAMONT: Mr Westende may be able to enlighten you on that. Maybe Mr Westende should be your spokesperson on industrial relations. Section 122 of the Industrial Relations Act 1988 permits the Australian Industrial Relations Commission to provide for preference in awards. The High Court has interpreted the legislation as denying the commission power to award stronger forms of preference. Do you want me to repeat that? It is not within the power of the commission to include compulsory unionism in an award. Further, the Commonwealth Industrial Relations Reform Act 1993 introduced changes to the Industrial Relations Act 1988 and provides, among other things, a framework for enterprise agreements and their certification by the commission. Once certified, an agreement will prevail over the terms of an award or order of the commission and exclude the operation of the relevant award.
Mr De Domenico: Is it true that the CFMEU used Parks and Gardens equipment to picket a workplace that you control?
MR LAMONT: Listen, and you may get to understand what the circumstances are.
Mr De Domenico: No; you listen.
MR DEPUTY SPEAKER: Order!
MR LAMONT: However, the Industrial Relations Act also provides that the commission may refuse to certify an agreement if "in the case of any agreement the Commission thinks that any of its terms is one that the Commission would not have power to include in an award".
In summary, the commission does not have the power to award full preference - in other words, compulsory unionism - and it is not possible to incorporate a requirement for compulsory unionism in an award or an enterprise agreement. It would, however, be possible to incorporate existing preference arrangements in certified agreements, and the legality under the ACT Discrimination Act of such preference arrangements will be no different from the situation applying to preference granted in awards.
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